Marshall v. Andrew F. Mahony Co.

• Decision Date: 01 February 1932
• Docket Number: No. 6462.,6462.
• Citation: 56 F.2d 74
• Parties: MARSHALL, Deputy Com'r, et al. v. ANDREW F. MAHONY CO. et al.
• Court: U.S. Court of Appeals — Ninth Circuit

56 F.2d 74 (1932)

MARSHALL, Deputy Com'r, et al. v. ANDREW F. MAHONY CO. et al.

No. 6462.

Circuit Court of Appeals, Ninth Circuit.

February 1, 1932.

Anthony Savage, U. S. Atty., and Jeffrey Heiman, Asst. U. S. Atty., both of Seattle, Wash., for appellant Marshall.

L. B. Sulgrove, of Tacoma, Wash., for appellant Sulgrove.

Bogle, Bogle & Gates, Lawrence Bogle, Stanley B. Long, Grosscup & Morrow, and John Ambler, all of Seattle, Wash., for appellees.

McCutchen, Olney, Mannon & Greene, Farnham P. Griffiths, and Charles E. Finney, all of San Francisco, Cal., amicus curiæ on behalf of Waterfront Employers of San Francisco.

Before WILBUR and SAWTELLE, Circuit Judges, and WEBSTER, District Judge.

WEBSTER, District Judge.

This is an appeal from a decree in equity enjoining in part the enforcement of an award of compensation made to appellant Winkler, an injured longshoreman, by the appellant Marshall, deputy commissioner for the fourteenth district under the Longshoremen's and Harbor Workers' Compensation Act of March 4, 1927, 44 Stat. 1424 (33 US CA §§ 901-950). The question presented for decision calls for an interpretation of the act with respect to the method of ascertaining or computing the amount of compensation to be paid an injured workman entitled to the benefits of the act. The findings of the deputy commissioner concerning Winkler's injury and compensation are as follows:

"That on the 8th day of August, 1930, the claimant above named was in the employ of the employer above named at Seattle, in the State of Washington, in the Fourteenth Compensation District, established under the provisions of the Longshoremen's and Harbor Workers' Compensation Act, and that the liability of the employer for compensation under said Act was insured by the Fidelity-Phoenix Fire Insurance Company; that on said day claimant herein while performing service for the employer upon the navigable waters of the United States, sustained personal injury resulting in his disability while he was employed as a longshoreman on board the steamship `Jane Nettleton,' said steamship being then situated at Seattle, in the State of Washington; that while the claimant above named was so employed and engaged in lifting bags of salt he sustained an inguinal hernia, causing injury and resulting in his disability; that notice of injury was given within thirty days after the date of such injury to the Deputy Commissioner and to the employer; that the employer furnished claimant with medical treatment, etc., in accordance with section 7 (a) of the said Act (33 USCA § 907 (a); that the claimant was engaged solely in the occupation of a longshoreman for many years prior to the time of injury; that the actual earnings of the claimant for the calendar years 1927, 1928 and 1929 were respectively $1,163.16; $1,266.63, and $1,406.29 and during the first six months of the year 1930, the earnings of the claimant amounted to the sum of $620.87; that during the year immediately preceding his injury the claimant was disabled by reason of illness for ten days, but during the remainder of said period he followed solely the employment of a longshoreman, reporting to the place of employment as frequently as required, being ready and willing to undertake and perform all work as a longshoreman offered to him; that during the said period the claimant earned a total of $1,266.20, based on an hourly wage, for work performed by him as longshoreman; that during said period the claimant worked as a longshoreman on 182 days or parts of days, and, therefore, claimant did not work in such employment during the whole of the year immediately preceding his injury; that M. Diegnan is a workman engaged in the occupation of a longshoreman in the same port in which the claimant sustained his injury and is an employee of the same class as the claimant; that during the year immediately preceding said injury the said M. Diegnan worked as a longshoreman 284 days and, therefore, worked substantially the whole of said year; that said Diegnan earned a total of $2,314.45 for such labor, an average of $8.15 per day, during the days so employed; that 300 times the said average of $8.15 per day, amounts to the sum of $2,445.00; that the average annual earnings of the claimant, as determined by subdivision (b) of section 10 of the Act (33 USCA § 910 (b), is $2,445.00; that as a result of the injury sustained the claimant was wholly disabled from August 9, 1930, to and including October 17, 1930, and is entitled to 10 weeks' compensation, $25.00 per week, for such disability; that the disability of the claimant continued at the time of the hearing on October 23, 1930; that the employer has paid $178.53 to claimant as compensation."

From the findings it will be observed that the deputy commissioner found that Winkler had been employed during the year preceding his injury on 182 days or parts of days, and therefore did not work substantially the whole of that year; that during the year the claimant was disabled by illness for about 10 days, but that with this exception he followed solely the employment of a longshoreman, reporting to the place of employment as frequently as required, being ready and willing to undertake all work as a longshoreman that might be offered him; that one Diegnan was a workman engaged as a longshoreman at the port of Seattle, and was an employee of the same class as Winkler; that during the year immediately preceding Winkler's injury Diegnan worked 284 days, or substantially a whole year, and earned a total of $2,314.45, or an average of $8.15 per day during the time of his employment. The deputy commissioner then computed Winkler's compensation under subdivision (b) of section 10 of the act in this manner: He multiplied $8.15 by 300 days, making $2,445; he then divided $2,445 by 52 weeks, getting a quotient of $47.02; he then took two-thirds of the quotient, which amounted to $31.25; this being in excess of the maximum amount authorized by the act, $25 per week, the permissible maximum, was awarded the injured employee. The deputy commissioner made no findings concerning the regularity or irregularity of available employment in the longshoring industry at the port of Seattle, notwithstanding there was a wealth of uncontradicted evidence submitted covering that point. The District Court held that the award of the deputy commissioner was erroneous as a matter of law; that the claimant's compensation should have been determined in the manner provided by subdivision (c) of section 10, and enjoined the enforcement of the award in excess of that amount. The court ascertained the amount of compensation to be awarded in this manner: Winkler, during the year immediately preceding his injury, earned $1,266.20; this sum was divided by 52 weeks, making his actual weekly earnings $24.35, and two-thirds of this amount, or $16.23 per week, was found to be the proper amount to be allowed. It should be noted that the average annual earnings of the claimant for the three years immediately preceding his injury, as found by the deputy commissioner, were $1,285, and the award made to him by the deputy commissioner paid him more while he was disabled than he actually earned when working.

The specific question for determination is whether, under the facts disclosed by the record, Winkler's compensation should have been measured by subdivision (b) or by subdivision (c) of section 10 of the act. That section in part reads as follows:

"Except as otherwise provided in this chapter, the average weekly wage of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation and shall be determined as follows:

"(a) If the injured employee shall have worked in the employment in which he was working at the time of the injury, whether for the same or another employer, during substantially the whole of the year immediately preceding his injury, his average annual earnings shall consist of three hundred times the average daily wage or salary which he shall have earned in such employment during the days when so employed.

"(b) If the injured employee shall not have worked in such employment during substantially the whole of such year, his average annual earnings shall consist of three hundred times the average daily wage or salary which an employee of the same class working substantially the whole of such immediately preceding year in the same or in similar employment in the same or a neighboring place shall have earned in such employment during the days when so employed.

"(c) If either of the foregoing methods of arriving at the annual average earnings of an injured employee can not reasonably and fairly be applied, such annual earnings shall be such sum as, having regard to the previous earnings of the injured employee and of other employees of the same or most similar class, working in the same or most similar employment in the same or neighboring locality, shall reasonably represent the annual earning capacity of the injured employee in the employment in which he was working at the time of the injury." (33 USCA § 910 (a-c).

Appellants rely for reversal chiefly on the case of Gunther v. United States Employees' Compensation Commission, 41 F. (2d) 151, 153, decided by this court in May, 1930. Appellees insist that the Gunther Case is distinguishable, and that subdivisions (a) and (b) of section 10 cannot reasonably and fairly be applied to the facts in this case because those subdivisions contemplate only an industry furnishing regular employment continuously throughout the whole year, and that employment in the longshoring industry in the state of Washington is not steady, but irregular and discontinuous in character; that to apply subdivision (b) to the facts of the instant case would result in the...